BILL NUMBER: S4155A
SPONSOR: SANDERS
 
TITLE OF BILL:
An act to amend the executive law, in relation to requiring contracting
agencies to contact minority and women-owned business enterprises when
such enterprise is listed on a utilization plan and when a contract is
awarded
 
PURPOSE:
This bill would require contractors to submit a utilization plan at the
time it submits a bid and specifies timeframes when work assignment and
payments to MWBES must be received and made, respectively.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends subdivision 5 of section 313 of the Executive Law to
require contracting agencies to review and post utilization plans and
related waivers for contracts with minority and women-owned business
enterprise goals.
Section one further requires contracting agencies, within five business
days after an award letter is sent to the contractor, to submit an award
notification letter to each minority and women-owned business enterprise
listed on the utilization plan.
* The bill provides that a minority or women-owned business enterprise
listed on the original utilization plan may not be amended or changed by
the contractor after submission to the contracting agency without good
cause shown and written approval of the contracting agency.
* The bill requires the contracting agency to notify the contractor in
writing within ten days of any deficiencies in the utilization plan and
requires such deficiencies to be remedied within seven days.
* The bill requires the contractor, after award of a contract, to
execute a subcontractor's agreement and provide a work assignment to
each subcontractor listed in the bid, proposal, utilization plan, or
other subcontractor disclosure submitted to the contracting agency with-
in forty-five days of the award.
* The bill requires the contractor, after receiving payment on the
contract, to make payments to each subcontractor, including any minori-
ty-owned or women-owned business enterprise subcontractor, for work
performed under the contract within twenty days of receiving payment
from the contracting agency. The bill provides that a contractor shall
not be disqualified where the contractor has made a
good faith effort to make timely payment. * The bill allows a subcon-
tractor to notify the contracting agency of a violation of the prompt
payment requirement and requires the contracting agency to notify the
contractor to correct such deficiency within ten days.
* The bill also clarifies when certified minority-owned, women-owned,
and dually certified minority and women-owned contractors may self-cer-
tify and perform work under a contract to meet applicable MWBE goals.
Section two provides that the act shall take effect immediately,
provided that the amendments to subdivision 5 of section 313 of the
Executive Law shall not affect the repeal of such section and shall be
deemed repealed therewith.
 
JUSTIFICATION:
New York's minority and women-owned business enterprise program is
intended to ensure that certified MWBEs have meaningful access to state
contracting opportunities. However, concerns remain that MWBEs may be
listed on utilization plans during the bidding or approval process but
later removed, replaced, or not given a meaningful opportunity to
perform the work contemplated under the contract.
This bill addresses that concern by requiring contracting agencies to
notify MWBEs listed on utilization plans when a contract is awarded and
by limiting post-submission changes to the utilization plan unless there
is good cause and written approval from the contracting agency. This
approach helps prevent improper substitution while preserving flexibili-
ty for legitimate circumstances where a listed MWBE is unable to
perform, becomes unavailable, or another good-cause basis exists.
The bill also strengthens subcontractor accountability by requiring
contractors to execute subcontractor agreements and provide work assign-
ments within a clear timeframe after contract award. In addition, the
bill establishes a prompt payment requirement for all subcontractors,
including MWBE subcontractors, once the contractor has been paid by the
contracting agency. This ensures that the protections in the bill are
not limited only to MWBEs, while still advancing the bill's central goal
of protecting MWBE participation in public contracting.
By improving notice, transparency, utilization-plan accountability, and
prompt payment protections, this legislation will help ensure that
subcontractors are treated fairly and that MWBEs listed on state
contracts receive a genuine opportunity to perform the work for which
they were identified.
 
PRIOR LEGISLATIVE HISTORY:
2023-24: A01266; Referred to governmental operations
2021-22: A07778; Referred to governmental operations
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.